Texas Divorce Attorney Blog
The Bear actor Abby Elliott and her producer husband, Bill Kennedy, are divorcing after nearly ten years of marriage. Both spouses are asking for spousal support while simultaneously asking the court to prevent the other from receiving it. Elliott requested support when she filed for divorce, and Kennedy later filed his own request for support while seeking to terminate the court’s ability to award support to Elliott. Although their divorce is governed by California law, we can analyze how their case hypothetically could play out under Texas law.
In Texas, a spouse’s request for maintenance does not establish that the spouse is entitled to receive it. Here, a court may award post-divorce maintenance only when the spouse seeking it satisfies the requirements detailed in the Texas Family Code. Tex. Fam. Code § 8.051.
When Can a Spouse Receive Spousal Maintenance in Texas?
A Texas spouse may qualify for maintenance if, after the divorce, the spouse will lack sufficient property to provide for minimum reasonable needs and one of the following applies:
- The marriage lasted at least 10 years, and the spouse seeking maintenance cannot earn sufficient income to meet minimum reasonable needs.
- The spouse seeking maintenance has an incapacitating physical or mental disability that prevents sufficient employment.
- The spouse is the custodian of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability.
- The spouse seeking maintenance or the spouse’s child has experienced family violence committed by the other spouse during the marriage and within the specified statutory period.
The statute also creates a rebuttable presumption that maintenance is not warranted under the ten-year provision unless the requesting spouse has exercised diligence in earning sufficient income or developing the necessary skills to become self-supporting. Tex. Fam. Code § 8.053.
When Should a Spouse Ask for Support?
Texas does not have a separate legal-separation status in which spouses become legally separated but remain married. A couple is married until a divorce is granted, and a divorce proceeding is generally the sole vehicle through which the court resolves the parties’ rights arising from the marriage.
For that reason, a spouse seeking court-ordered post-divorce maintenance should raise the issue as part of the divorce proceeding rather than waiting until after the divorce is finalized. Section 8.051 expressly addresses maintenance “in a suit for dissolution of a marriage,” subject to limited circumstances involving a prior dissolution in which the court lacked personal jurisdiction over an absent spouse.
There is also an important distinction between post-divorce maintenance and temporary support while a divorce is pending. During the divorce case, a Texas court may order one spouse to make payments for the support of the other spouse when appropriate and equitable. Tex. Fam. Code § 6.502.
What Would the Elliott-Kennedy Spousal Support Battle Look Like in Texas?
If the Elliott-Kennedy divorce were governed by Texas law, an award of spousal maintenance to either spouse could be difficult because both appear to have substantial earning capacity and professional careers. Texas law requires the spouse seeking maintenance to show that, after the divorce, the spouse will lack sufficient property to provide for minimum reasonable needs, which could be difficult in their case.
Additionally, if either were to rely on the 10-year marriage requirement, they would fall short by about two months. Neither couple seems to meet the other requirements related to disability, household violence, or either of their children dealing with a disability.
Unsure if You Can Request Spousal Support in Your Divorce? Talk to a Dallas Divorce Attorney
McClure Law Group can assist spouses in evaluating whether the statutory requirements for spousal maintenance have been satisfied and in presenting the financial evidence necessary for the trial court to make that determination. Connect with our divorce law team today by calling (214) 692-8200.